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07/05/2009

The Senate and the Filibuster--Posner

The U.S. Senate is a very peculiar institution. It was not when it started. It was created to be a check on the popularly elected House of Representatives, but also on the President, through its "advise and consent" power--the President's nominees for officials had to be confirmed by the Senate. Senators were not to be elected, but to be appointed by the state legislatures. The assumption was that the legislatures would want to appoint a person of distinction to represent the state. There were only 13 states (though more were envisioned), so there would be only (at the outset) 26 Senators. Their long terms (six years) would encourage expertise and a greater independence from popular passions than the members of the House of Representatives, elected for only two-year terms, could be expected to have. The Senate would, in short, be an elite, deliberative, and only indirectly democratic body.
The change in the character of the Senate since the Constitution of 1787 has been profound. Senators, as a result of a constitutional amendment, are now directly elected, and there are 100 of them. The combination of the amount of time that they have to spend raising money and tending to constituents, and the immensely greater populations of most states now compared to the eighteenth century, and the enormously greater size and complexity of the federal government, have resulted in Senators' being underspecialized, despite having large staffs. The filibuster (a creature of Senate rule rather than of the Constitution or a statute) creates a requirement of a supermajority to pass legislation to which there is substantial senatorial opposition, and rules or customs of senatorial "courtesy" give individual Senators considerable blocking power, for example power to delay confirmation hearings.
The result is that the Senate is an extremely inefficient institution compared to the House of Representatives, in which the majority is in firm command. And because there are so many more House members (435), they have fewer committee assignments and thus can develop greater expertise than Senators; in addition, although they run for office three times as often, they run in much smaller districts and often with little competition and on both accounts don't have to raise as much money in campaign donations as Senators do.
Since the Senate is very large and Senators are directly elected, it is unclear why there is a Senate--that is, why the federal legislature is bicameral. Bicameralism increases the transaction costs of enacting legislation, which can be good or bad (it is bad in national emergencies, as in the financial crisis of last September), and it also increases the cost of repeal, which on balance probably is bad, arbitrarily enhances the political power of sparsely populated states, results in many unprincipled and confusing legislative compromises, and diffuses responsibility for legislation. It is not clear that on balance we are better off with the bicameral system.
The filibuster is an incomprehensible device of government. A supermajority rule, whether it is the rule of unanimity in criminal jury trials or the supermajority rules for amending the Constitution, makes sense when the cost of a false positive (convicting an innocent person, or making an unsound amendment to the Constitution) substantially exceeds the cost of a false negative. But it is hard to see the applicability of that principle to Senate voting, given the other barriers to enacting legislation.
These reflections on the filibuster are prompted by the Democratic Party's recent achievement of a filibuster-proof (60-40) majority in the Senate. It might seem that since the President Obama and Vice-President Biden made such a strenuous effort to convert Senator Arlen Spector from the Republican to the Democratic Party, which put the latter within one vote of a filibuster-proof majority, they must think that having such a majority is a political asset. I am not so sure they do think that. It is easy to see why the conversion was in the Democratic Party's interest regardless of its potential effect on the filibuster; by eliminating one of the Republican Party's most prominent moderates, it contributed to the growing marginality of that party, as it becomes increasingly identified with a rather shrunken right wing.
I am not sure the filibuster-proof majority is a boon to the Democratic Party and program. Because if now the Administration's legislative program fails of passage or is mutilated in the course of passage, it will not be possible to blame an obstructive minority consiting of filibustering Republican windbags. Furthermore, the new voting alignment increases the power of every Democratic Senator, by threatening to align himself with the 40 Republicans in a crucial legislative showdown, to thwart the Administration's program or, more realistically, to insist on what may be costly compensation in the form of an amendment favoring an interest group that is important to his electoral prospects. Indeed, each of the Democratic Senators now has an incentive to play the hold-out in order to extract concessions, in any situation in which Republicans need only one or a very few Democratic defectors in order to defeat an Administration bill.

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Of course, as Michael McConnell once pointed out, the character of the House has changed just as dramatically. If the Founders wanted a bicameral legislature with one popularly elected body and one appointed by the States, then that's what they got. Gerrymandering, in effect, makes many House members appointed by State legislatures.

Also, it was in my opinion very foolish to let the threat of filibuster act as a filibuster. If people feel strongly enough to stand up there and talk for days, MAKE THEM DO THAT. This "we're filibustering, but we don't feel like actually filibustering, lets not and say we did and all go home and collect some bribes, er contributions" is garbage.
Is there some reason to not make them filibuster?

The Becker-Posner blog should be laud for bring attention public policy to its online followers, readers, and responders.

The Senate set out by the Constitutional Convention to be the higher of two chambers of Congress has become the laughing stock of our nation, where the individual Senators have become actors to a group of constituents, holding their interest above the nation, a vaudeville show in the making.

Holding office should be a privilege and honor, but has become of blocking factor and wedge of what needs to done for the good of the country.

No doubt, the Senate of the United States needs reforming, seeking its true intent under our constitutional government of checks and balances.

A good example is the position taken by Congress before the election of President Obama, including the Senate over Iraqi and Afghanistan

As we were headed into an election year, our democracy is threatened internally by own fascism. Left unchecked our country is headed in the direction of Nazis, Germany.

Today, we continue to be engaged in illegal wars, where aggressive acts have harm, injured, and killed peoples of Iraqi and Afghanistan. Both of these nations did not attack the United States, and the continual linking them to September 11 should be truthful addressed.

Outlaw groups representing policies to do injury to the United States are extremely small sampling of any given population and cannot be equated to the policies of those nations and the majority of people living therein.

There are those who believe in justifying criminal acts and crimes against humanity. They can justify those acts under a democracy as the other guys. We are not the other guys. Lincoln eloquent stated in the Gettysburg address:

That government of the people, by the people, for the people, shall not perish from the earth. on this continent a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal.

What I say to these people, read the Declaration of Independence and the Constitution.

What we stand for as a people and as a nation is written eloquently in those documents.

Tyranny is only made possible if we let it. We live in a free and open society under the governing rules of our constitution. To maintain that freedom we must always be vigilant.

Such abusive tyranny can start easily here as in Nazis Germany

Our guiding hand is made possible by the Sons of Liberty, by the Liberty Tree, by various committees of correspondence, by the minutemen at Lexington and Concord, by the ordeal of Valley Forge, by the echoing spirits of George Washington and Nathial Greene for the cause, and not least by the battlefields of Saratoga and Yorktown.

Why is it that I agree with you when you have information to back up your statements, and I don't when you .....well do not? Oh yeah, because you seem to be off your rocker when you don't.

"The result is that the Senate is an extremely inefficient institution compared to the House of Representatives, in which the majority is in firm command. And because there are so many more House members (435), they have fewer committee assignments and thus can develop greater expertise than Senators; in addition, although they run for office three times as often, they run in much smaller districts and often with little competition and on both accounts don't have to raise as much money in campaign donations as Senators do.

Did you just think to yourself..., "self, I need to really prove myself right, so I am going to make up facts that have no bearing on reality." Senators do raise raise more money than the Representatives and they might not have been intended to campaign nearly as much as they do, but that does not mean that they have switched places with the House.

House members still spend just as much time or more fund raising as Senators. That is easy to see just by glancing at their calendars. However, they are less efficient at raising money, which better explains their lower funded war chests, and their placement in the House. If they could raise more money they might decide to challenge the sitting Senator.

What might be a little harder to see is that, as you mentioned, Senators have much larger staffs. These large staffs don't spend time campaigning (one staff member is allowed to coordinate). So, even when the Senator is in his/her home state serving their constituents or campaigning, their staff are still gathering information for the Senator. Again, you mentioned this yourself, but wrote it off.

Lastly, regarding your assessment that the large number of Representatives, 435, means that they are on less committees and therefore better able to specialize is just relying on HOPE (you should know better) and that you need spend more time listening to CSPAN. Their staffs are smaller and the committee staff tries to help out the offices, but they are dealing with more members per committee (often double the Senate-if not more), and you ignored the fact that more legislation is moved through the House (burdening them even more).

You might still have an argument, but I believe if you actually engaged the two institutions that you would understand them better.

The distinction between the House and Senate lies in the Politics of Constitutionalism at the Constitutional Convention back in the 1700's. During the Convention a major rift occured around the organizational concept known as Unicameralism. This rift between small populated States and large ones was based on the fears of the smaller ones being politically subsumed by the larger states such as New York, Pennsylvania, Virginia. In order to protect their interests a coalition developed among the small States who would reject the Ratification of the Constitution when it came up for vote in their home states. Essentially, forcing the Convention to drop all discussion of a Unicamerial form of Government (otherwise the Constitution as we know it, would have ended up in the trash can) and move to a Bicamerial organizationl form. Which has continued to plague us, not only at the Federal level, but at the State level as well to this very day.

If I remember correctly, there is only one State in the Nation that utilizes the Unicameral form and that is Nebraska. The reason being that the "Sodbusters" in their commonsensical way decided that why should they be required to have to pay twice for the same job which comes with Bicameralism. Besides, Unicamerialism is usually more efficient.

As for the "Filibuster" this is simply an age old Parlimentary procedure tool that has been around for ages. Going back as far as Cato the Younger if not even further back. As a tool, the filibuster, allows a minority in the legislative body to be able to voice their concerns or try and control the legislative body by pirating and hijacking debate. Which is what those small States did in the Constitutional Convention back when and so created the plague of Bicameralism.

As a tool, filibustering, can have it uses, especially when corruption runs rampant in the Body politic. As an example, perhaps there ought to be required viewing of "Mr. Smith Goes to Washinton", by all Citizens at some time in their life.

The purpose of the senate is specifically to build in a vehicle for direct state representation as opposed to direct population representation (not simply a fear of mob rule). While with direct election of senators we've separated that idea somewhat, I believe it is still true. In general senators represent state interests while congressmen represent populist interests (these mix and mingle but tend to hold). Its one of the lesser discussed checks and balances, the balance between a federal and national government.

Implicit in Judge Posner's comment are three values: 1)Efficiency equals quick passage of legislation, or at least quick responsiveness to public opinion; 2)Raising money as an incumbent legislator is a bad or at least less desirable act than other uses of time; and 3)Small state or minority obstruction of legislation is a negative.

Judge Posner points to delay in passing Paulson's TARP program as a defect. In my view, while the need for a credit system bailout was obvious in light of Professor Friedman's discusion of the collapse of the Bank of the United States in what actually was a depression, it would have been better for the Senate to delay the plan a few more days and restrict its operation rather than to just appropriate money with an open-ended delegation. Ever since the Supreme Court abandoned delegation doctrine in the Court packing crisis, slower Senate action has taken on greater importance--we cannot fcount on the Supreme Court to exercise judicial review on economic legislation.

In fact raising money is one of the primary ways a Member of Congress in either chamber learns about how the economy works. It is conversations with experienced special interests that are most likely to result in both competent and knowledgeable legislation, not looking at national polls or listening only to an academia often remote from reality. As for democracy, we have created a regime of fundraising that intentionally requires much time because of the extraordinary limits on the amount any individual may give to a federal candidate. Remove those limits--$2300 per person--and federal candidates could virtually ignore fundraising, but would be less knowledgeable.

As for the amplified power of small states, it is those states that people, particularly of wealth, are moving to in order to escape the naive Marxism of governments in states like New York, California,New Jersey and Illinois. The fact is that states like New Hampshire, Idaho, and Wyoming have too little say in our national economic policy.

It is ashame Judge Posner has failed to notice the portents of change in numerous national polls that show the country reverting to a 2004 frame of mind about government economic intervention. If he carefully analyzed those polls he woould probably speak less certainly about "marginalization" of Republicans.

Funny how Posner's description of the original Senate sounds a lot like the role played by today's Supreme Court. Maybe the gradual democratization of the Senate explains the Warren Court's adopting a super-legislator role. Food for thought.

"Naive Marxism"? How does establishing a Progressive tax scale translate into "naive Marxism"? Unless, it's being viewed through the tinted glasses of "Ideology" or is it just perhaps sloth, gluttony and greed coming to the surface.

As for the "marginalization" of the Republicans, they've done it to themselves by abandoning the Center for the ridiculous Right. And this is coming from a former card carrying member of the Republican party.

Judge Posner -- you have some strange poisoning in this, your latest blog post. It only shows up on some browsers, but after your final paragraph ("I am not sure the filibuster-proof majority..."), there is a collection of casino gambling links wrapped in a hidden font tag. Looking at the source of the page, you can see several links to massivechange.com, which is undoubtedly part of a blog spam campaign.

It looks like your blog has been compromised by some MoveableType vulnerability. You may want to have your technical staff look at it.

A more progressive income is an excellent example of Naive Marxism particularly in an era when the upper 1% pay such a disproportionately high percentage of the total income tax. No one ever quantitatively demonstrates that people earning higher incomes get more from government. In fact, typically they probably get in net less because government does more to adversely affect them through non-taxation market intervention. For example, state laws mandating that health insurance include coverage for naturopaths, chiropractors, and acupuncture cost prosperous insureds unnecessarily for health insurance while through the federal progressive income tax high income taxpayers already pay for insurance not only for the poor but also up to 300% of the poverty level ($62,000)--a double whammy. While the result may not be "death to the kulaks", it is just another way of taking away from those who have earned and giving to those who are envious. And envy is the primal source of Marxism.

If I remember correctly, we still are a Judeo-Christian Nation, where we are supposed to, "be our brothers keeper" and where the Golden Rule is, "From each according to their ability, to each according to their need". This is not Sociaism or even "envious" Marxism, but Judeo-Christian ethic in action. So how does the ridiculous, "religious" Right, that has been the undoing of the Republican Party, combine the seemingly unmixable ideas of Judeo-Christian Ethic and bare knuckled Capitalism that would pummel a child into the gutter, simply to enrich themselves?

I agree with Judge Posner, it's arbitrary that sparsely populated states have enhanced political power. And it's up to our representatives to correct this issue. From this perspective I'm very glad that Obama is in office b/c it's likely that he'll ensure that we'll get a fair representation of power, I think. He's already started to put the credit card companies in check.

It actually goes to the heart of the case that Nilehat has confused the Golden Rule with a tenet of orthodox Marxism. The Golden Rule is "Do unto others as you would them do unto you." "From each . . . to each . . . is Marx's formulation of justice. So from our brother Nilehart we ought not expect either a reliable homily on Jadaeo-Christianity or much insight into the envy-based spirit of Naive Marxism. Nevertheless it might be noted that our religious tradition mandates what we do as individual sinners in need of redemption. Judaism and Christianity have taught the importanceof direct individual charity. What they do not teach is a welfare state based on entitlements. Surely, each of us is our brother's keeper, and each should bear in mind that when we encounter a man in need of help, we are obligated as if we encountered the Lord in need. That has nothing to do with tolerance of government seemingly devoted to finding the most expensive, least efficient ways of helping. Or of supporting taxpayer financed schools that have contracted their authority to unions that oppose performance as an objective.

As a consequence there is little incompatibility between the believer's charitable obligation in jadaism or Christianity and a free market economy. Both rely on the freedom to choose.

Where there is a difference is when you empower government to choose for us.

Have you even take the time to read and fully understand the likes of, Marx and Engel's "Communist Manifesto" or "Das Kapital", or Smith's, "Wealth of Nations", or Hamilton's "Report on Manufactures", or Henry Carey's "The Harmony of Interests, Agricultural, Manufacturing or Commercial", or Henry Georges, "Progreess and Poverty", Or any of the works by the likes of Keynes, Galbraith and Samuelson? I won't even mention Richard Posner's, "A Failure of Capitalism". And this is just the short list.

As for the understanding of the Political- Ecconomic formulation of the State and the relationship to the Individual and vice versa, May I suggest Hobbes's, "Human Nature and De Corpore Politico" or "Leviathan". Or Machiavelli's, "The Discourses" or "The Prince". And all of these are just the preliminaries to gaining a preliminary understanding of Political-Economics and the relationship of the State and Individual. Furthermore, I won't even mention the Ten Commandments.

Once again the "Ridiculous Right" pontificates on the subject of Political Economics without any theoretical basis. Except that based on their own belief system based on the bizarre aspects of pure individualism and Anarcho-Capitialism and their desire to foist a monster onto the Public; so that they may enrich themselves at the expense of all others.

Welcome once again to the return of the "War of All against All". I thought we left that behind at least ten thousand years ago.

apologies to all for my typos -- due to my autism brain hypoperfusion, I can only effectively read Ariel and Calibri print styles, and there is no autism accessible edit feature on this comment post. That does not make me an "idiot savant" with a Juris Doctorate degree, however, only a prodigious savant in the law with hypoperfusion brain vision impairments and a law degree !!!

But hey, no one here discriminates against disabled Americans, do they ?

The undemocratic Senate has some real advantages in a large, complex polity like the US. We only need to look at China and its current (and ongoing) problems with minorities on the edges of its empire to see what happens when it is a stated national goal for their to be harmony and UNITY. Minorities are outvoted and marginalized. In the US there is less emphasis on UNITY and this goal is empowered by the undemocratic Senate.

Yes, the Senate is inefficient. But the ethnic minorities in Hawaii aren't seriously fighting for Hawaii independence. The Mexican Session isn't full of people fighting for a return to their ethnic and historical roots back in a historical Greater Mexico. Alaskan independence efforts are utterly marginal. It didn't HAVE to be that way. In a unified polity like that of France or one that suppresses minorities as part of its goal of unity (China) minorities get suppressed. But the Senate's empowerment of small minorities mean we save ourselves from the "inefficiency" of fighting border and internal wars at the edges of our own multi-ethnic country.